Escolar Documentos
Profissional Documentos
Cultura Documentos
2d 629
The question in this appeal is whether the District Court should have afforded
appellant a hearing on his motion for collateral relief pursuant to 28 U.S.C.A.
2255.
Thereafter appellant filed the motion now under review. The District Court,
without ordering a hearing, but after examining the 'files and records,' including
a transcript of the arraignment which was prepared at the request of the District
Judge, denied the motion 'as being without merit.' The following allegations are
made in this appeal: (1) that there was a denial of due process of law when the
District Court, in violation of Rule 32(a), Fed.R.Crim.P., failed to afford the
First. As to noncompliance with Rule 32(a), the record discloses the following
colloquy between the court and the appellant prior to sentence:
'Mr. Baysden, you did indicate in the other case that you were too full to make a
statement. This is the case involving the March through April conspiracy
matter. Do you have a further statement to make to the Court at this time?
'MR. BAYSDEN: Well, Your Honor, I would like to say this. I am sorry about
what happened. I would like to have a chance to be back with my wife and
friends and I'll never do this any more.
10
This excerpt provides clear proof that specific inquiry was made of the
appellant before sentence, affording him a chance to speak in his own behalf
and to present information in mitigation of punishment. Without question Rule
32(a) was satisfied and appellant's contention to the contrary is patently without
basis in fact or law.2
11
Second. With regard to the voluntariness of the plea, the record shows that the
District Judge accepted the plea of guilty after the following discussion:
12
'COURT: Has anyone from the prosecution, that is, the United States
Attorney's Office, or any of the Treasury Agents or Secret Service or anyone
else threatened you in any manner to obtain your plea of guilty to these
charges?
13
'MR. BAYSDEN: No, sir. They have always been very nice.
14
'COURT: Has anyone of them promised you any reward or hope of reward or
leniency of the Court or of the prosecution in return for your plea of guilty?
15
16
'COURT: You make that plea freely and voluntarily, without fear or
compulsion or coercion of any sort?
17
18
The lawyer assured the court in appellant's presence that he had explained to
his client the charges and the possible penalties but asked the court to do so
too.3 In response to this request the District Judge analyzed the charges count
by count and pointed out the maximum penalty under the statute for each
charge. The contemporaneous record thus categorically refutes appellant's
contention that Rule 11 was not observed.
19
Third. The claim that the lawyer chosen and paid by the appellant was
incompetent need not be considered as this was not mentioned in the motion
and appears for the first time in the appeal, in the brief prepared by the
defendant and adopted by counsel on appeal. It is obviously a mere
afterthought, not supported in any way
20
21
Fifth. Rule 32(d) permits withdrawal of a plea of guilty 'to correct manifest
injustice.' Viewing the recorded account of the arraignment and sentencing, we
perceive no hint of injustice or abuse of judicial discretion or prejudicial error
which would prompt a court to permit withdrawal.5
22
As the above discussion attests, the District Judge had before him a trial
transcript to confirm his personal recollection of the events mentioned in
We wish to encourage the fair and practical procedure adopted in this case. It
obviated a useless expenditure of the court's time when the available records
showed that there was no genuine basis for a hearing; at the same time, and not
less importantly, by the preparation of a memorandum clearly setting forth the
reasons for the court's action it avoided the appearance of arbitrary disregard of
the prisoner's contentions.7
24
Affirmed.
Denial of the right of allocution has been held not to be such a fundamental trial
defect, absent aggravating circumstances, as to furnish ground for relief under
section 2255. Machibroda v. United States, 368 U.S. 487, 489, 82 S.Ct. 510, 7
L.Ed.2d 473 (1962); Hill v. United States, 368 U.S. 424, 429, 82 S.Ct. 468, 7
L.Ed.2d 417 (1962); United States v. Taylor, 303 F.2d 165, 167 (4th Cir.
1962); United States v. Bebik, 302 F.2d 335, 337 (4th Cir. 1962). Here,
however, as we have shown, allocution was accorded
The fact that appellant's attorney may have expressed the hope or belief that a
plea of guilty would result in a lighter sentence is not professionally improper,
nor is it prejudicial or a ground for collateral relief absent evidence that the
Government had a part in arousing the expectation of leniency. United States v.
Taylor, 303 F.2d 165, 168 (4th Cir. 1962); cf. Pilkington v. United States, 315
F.2d 204 (4th Cir. 1963); Tabor v. United States, 203 F.2d 948 (4th Cir. 1953)
4
See United States v. LoDuca, 274 F.2d 57 (2d Cir. 1960); Egan v. United
States, 268 F.2d 820 (8th Cir.), cert. denied, 361 U.S. 868, 80 S.Ct. 130, 4
L.Ed.2d 108 (1959); Livers v. United States, 185 F.2d 807 (6th Cir. 1950)
Georges v. United States, 262 F.2d 426, 430 (5th Cir. 1959); United States v.
Parrino, 212 F.2d 919, 921 (2d Cir.), cert. denied, 348 U.S. 840, 75 S.Ct. 46, 99
L.Ed. 663 (1954); see Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963)
Sanders v. United States, 373 U.S. 1, 6, 83 S.Ct. 1068, 1072, 10 L.Ed.2d 148
(1963); Machibroda v. United States, supra, 368 U.S. at 494, 82 S.Ct. at 513514, 7 L.Ed.2d 473; United States v. Glass, 317 F.2d 200, 202 (4th Cir. 1963);
Reed v. United States, 291 F.2d 856, 857 (4th Cir. 1961)